Webster v. Luther

• Decision Date: 18 May 1896
• Docket Number: No. 161,161
• Citation: 163 U.S. 331,16 S.Ct. 963,41 L.Ed. 179
• Parties: WEBSTER v. LUTHER et al
• Court: U.S. Supreme Court

163 U.S. 331

16 S.Ct. 963

41 L.Ed. 179

WEBSTER

v LUTHER et al.

No. 161.

May 18, 1896.

Jed L. Washburn, for plaintiff in error.

C. K. Davis, F. B. Kellogg, C. A. Severance, and T. T. Hudson, for defendants in error.

Mr. Justice HARLAN delivered the opinion of the court.

This action involves the title to lots 1 and 2, section 18, in township 62, of range 14 W., situated in St. Louis county, Minn.

At the trial below, the plaintiff, Webster, read in evidence, without objection:

(1) The application of Mary Robertson, widow of James A. Robertson, deceased, of Benton county, dated April 7, 1887 (together with the receipt of the register of the local land office showing the payment of the fee and commissions prescribed by law), to enter the lands here in dispute, under section 2306 of the Revised Statutes, granting additional lands to soldiers and sailors who served in the war of the Rebellion. (2) The receipt of the proper land office, dated April 7, 1887, showing the payment in full of the balance required y law for the entry of the above lots, under section 2291 of the Revised Statutes of the United States. (3) A patent from the United States to Mary A. Robertson for these lands, issued September 21, 1888, recorded February 11, 1889, in the office of the register of deeds in St. Louis county, Minn., and purporting to have been issued pursuant to the act of congress approved May 20, 1862, 'to secure homesteads to actual settlers on the public domain' (12 Stat. 392, c. 75), and the acts supplemental thereto. This patent recited that the claim of the patentee to the lots in controversy had been established and duly consummated in conformity to law. (4) A quitclaim deed of bargain and sale of these premises from Mary A. Robertson, widow, to the plaintiff, Webster, dated October 7, 1890, acknowledged October 17, 1890, and recorded October 22, 1890.

The defendants read in evidence a power of attorney dated April 28, 1880, and duly recorded April 8, 1887, from Mary A. Robertson to James A. Boggs. This instrument authorized and empowered Boggs, as attorney for his principal, 'to sell, upon such terms as to him shall seem meet,' any lands which the principal then owned, either in law or equity, and obtained by her as 'an additional homestead' under the provisions of section 2306 of the Revised Statutes; to sell any such lands as she might thereafter acquire under said acts; to receive the purchase money or other consideration therefor, and to deliver in the name of the principal such deeds or other assurance in the law therefor as to the agent seemed meet and necessary. It contained these additional clauses: 'And my said attorney is hereby authorized to sell said lands, or my interest therein, and to make any contract in relation thereto which I might make if present, and to receive for his own use and benefit any moneys or other property the proceeds of the sale of said lands, or any interest therein, or arising from any contract in relation thereto, or received or recovered for any injury thereto, and I hereby release to my said attorney all claim to any of the proceeds of any such sale, lease, contract, or damages. And I further authorize my said attorney to appoint a substitute or substitutes to perform any of the foregoing powers, hereby ratifying and confirming all that my said attorney or his substitute may lawfully do or cause to be done by virtue of these presents.'

The admission of this power of attorney in evidence was objected to by the plaintiff upon the ground, among others, that it tended to prove a transaction in fraud of and in contravention of the laws of the United States, and that upon its face it was contrary to law, against public policy, fraudulent, and void. This objection was overruled, and the plaintiff excepted.

The defendants next read in evidence: (1) Two warranty deeds, each for an undivided one-half of these lands, from Mary A. Robertson, by James A. Boggs, her attorney in fact; one to the defendant Louis Rouchleau, and the other to the defendant Milo J. Luther, each dated April 7, 1887, and recorded April 15, 1887. (2) A warranty deed executed subsequently to the above deeds, by Louis Rouchleau to the defendant Luther, for an undivided one-fourth of the lands.

The court adjudged that the title was in the defendants, freed from any claim of the plaintiff.

The question before us is whether the instrument of writing given to Boggs by Mary A. Robertson, under date of April 28, 1880, and which authorized the former to sell upon such terms as he deemed meet, and to convey the title to, and to receive for his own use and benefit the proceeds of the sale of, any lands obtained by the latter as an 'additional homestead' under section 2306 of the Revised Statutes, was consistent with the acts of congress relating to such matters. This is a question merely of statutory construction, and is within a very narrow compass.

By the act of May 8, 1862 (12 Stat. 392, c. 1862), certain persons were given the right, under specified conditions, to enter on quarter section or a less quantity of unappropriated public lands. The sections of that act, so far as they bear upon the present case, were preserved in sections 2289-2291 of the Revised Statutes, which are as follows:

'Sec. 2289. Every person who is the head of a family or who has arrived at the age of twenty-one years, and is a citizen of the United States, or who had filed his declaration of intention to become such, as required by the naturalization laws, shall be entitled to enter one quarter section or a less quantity of unappropriated public lands, upon which such person may have filed a pre-emption claim, or which may, at the time the application is made, be subject to pre-emption at one dollar and twenty-five cents per acre; or eighty acres or less of such unappropriated lands, at two dollars and fifty cents per acre, to be located in a body, in conformity to the legal subdivisions of the public lands, and after the same have been surveyed. And every person owning and residing on land may, under the provisions of this section, enter other land lying contiguous to his land, which shall not, with the land so already owned and occupied, exceed in the aggregate one hundred and sixty acres.

'Sec. 2290. The person applying for the benefit of the preceding section shall, upon application to the register of the land office in which he is about to make such entry, make affidavit before the register or receiver that he is the head of a family, or is twenty-one years or more of age, or has performed service in the army or navy of the United States, and that such application is made for his exclusive use and benefit, and that his entry is made for the purpose of actual settlement and cultivation, and not either directly or indirectly for the use or benefit of any other person; and upon filing such affidavit with the register or receiver, on payment of five dollars when the entry is of not more than eighty acres, and on payment of ten dollars when the entry is for more than eighty acres, he shall thereupon be permitted to enter the amount of land specified.

'Sec. 2291. No certificate, however, shall be given, or patent issued therefor, until the expiration of five years from the date of such entry; and if at the expiration of such time, or at any time within two years thereafter, the person making such entry; or if he be dead, his widow; or in case of her death, his heirs or devisee; or in case of a widow making such entry, her heirs or devisee, in case of her death, proves by two credible witnesses that he, she or they have resided upon or cultivated the same for the term of five years immediately succeeding the time of filing the affidavit, and makes affidavit that no part of such land had been alienated, except as provided in section twenty-two hundred and sixty-eight, and that he, she or they will bear true allegiance to the government of the United States; then, in such case, he, she or they, if at that time citizens of the United States, shall be entitled to a patent, as in other cases provided by law. That the proof of residence, occupation or cultivation, the affidavit of non-alienation, and the oath of allegiance, required to be made by section twenty-two hundred and ninety-one of the Revised Statutes, may be made before the judge, or, in his absence, before the clerk, of any court of record of the county and state, or district and territory, in which the lands are situated; and if said lands are situated in any unorganized county, such proof may be made in a similar manner in any adjacent county in said state or territory; and the proof, affidavit and oath, when so made and duly subscribed, shall have the same force and effect if made before the register or receiver of the proper land district; and the same shall be transmitted by such judge, or the clerk of his court, to the register and receiver, with the fee and charges allowed by law to him; and the register and receiver shall be entitled to the same fees for examining and approvi g said testimony as are now allowed by law for taking the same. That if any witness making such proof, or the said applicant making such affidavit or oath, swears falsely as to any material matter contained in said proof, affidavits or oaths, the said false swearing being wilful and corrupt, he shall be deemed guilty of perjury, and shall be liable to the same pains and penalties as...